H-1B and L-1 issue: Trump to appeal US court order blocking large parts of temporary work visa ban

Holders of visas such as H-1B and L-1, and other immigrants, can now feel relieved as the US Citizenship and Immigration Services (USCIS) cannot implement the visa fee hike.

Judge Jeffrey S White in his order on September 29, stayed the effective date of the framed final rule, and denied the government’s request for a brief administrative stay.

The hike would have come into effect from October 2.

But the worst is not over yet, say immigration experts. For the Trump administration is going for an appeal to get the hike implemented in the coming weeks, they added.

Xiao Wang, co-founder & CEO, Boundless Immigration, a US-based tech firm that offers online immigration services, said: “The government is appealing the ruling to the 9th Circuit, and we're all waiting as to when they’ll hold hearings and how long it'll take.”

The 9th Circuit refers to the Federal Appeals Court.

The origin

In August, the Department of Homeland Security (DHS) approved the final rule that increased the visa fee for immigrants across categories.

For instance, fee for H-1B and L-1 visas increased by 20 percent and 75 percent from the current $460. Further, the impact on employers, who have more than 50 employees, of which over 50 percent are H-1B/L-1 holders, is huge as the visa fee for extensions stood at $4,000/$4,500 per petition.

Termed 50-50 rule, this would impact tech firms that employ significant H-1B and L-1 visa holders.  Kellen Powell, an immigration attorney in the US, pointed out that it is more than double the current fees.

However, the 50-50 rule will not affect employers that have less than 50 employees or those with less than 50 percent highly skilled workforce. Only the H-1B and L-1 fee hike would apply.

Kellen Powell, an immigration attorney in the US, pointed out that it is more than double the current fees.

This would have a huge impact on Indians who account for a significant share of these visas. Of the 1.8 lakh visas issued/extended in FY2019, close to 1.3 lakh were Indians.

The current judgement that stayed the visa fee hike is a relief for employers who were rushing to file petitions, pointed out Powell.

What will happen now?

The following weeks would determine if this fee hike is here to stay or not. Like Wang pointed out, hearing for the appeal is expected in the coming weeks and its outcome would be key.

In addition, Joel Yanovich, immigration attorney, Murthy Law firm in the US, said that the administration can restart the regulatory process for fee hikes, but that would be time-consuming.

Powell said that through the regulation, the administration could ask for an interim final rule, similar to what it has done with the proposed H-1B wages on grounds that the USCIS does not have enough funding.
Last month, the agency planned to furlough 13,000 employees due to fund deficit but withdrew it at a later stage.

In a statement, the immigration agency said: “This decision, barring the USCIS from enacting its mandatory fee increase, is unprecedented and harmful to the American people.”

The fee rule, the USCIS said, is two years behind schedule, and is a smaller percentage increase than the previous one.

Will these developments impact visa filings?

It would, says Powell. “The rush to file will be just as pressing over the next few weeks. There is still a risk that USCIS could get the injunction lifted on appeal,” he added.

Over the last few weeks, immigration attorneys were a busy lot as employers and immigrants, particularly Indians, who got their green card queue advanced by 2-3 years wanted to file before the visa fee took effect in October.

The October visa bulletin released last month advanced the final process for green cards for Indians in their EB-2 and EB-3 category by 2-3 years.

“Also, the longer you wait to file, the greater the chances that a court could allow for the higher fees to be implemented,” Yanovich of Murthy Law firm added.